JUDGMENT 1. The only point I have been called upon to decide in this appeal by the tenant defendant from an appellate judgment and decree of affirmance in an action in ejectment is if I should keep the tenancy intact directing the appellant to vacate the premises in controversy within a certain date so that the respondent landlord may build and rebuild without the tenant being ejected. 2. Mr. Ghose, the learned advocate for the appellant, confines himself to this point and this point only, abandoning and for good reasons too-the other contention of the notice to quit being bad at law. Let me first get at the facts either no longer in the realm of controversy or concluded by the concurrent findings of the courts below. One, the tenancy has been determined by the notice to quit. Two, the landlord reasonably requires the suit premises to complete his unfinished construction. Three, the statutory balance sheet in terms of the explanation to clause (h) to sub-section (1) of section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 17 of 1950, (by which this litigation is governed), works in favour of the landlord. Greater inconvenience will be caused to him than to the tenant, the appellant before me. Four, the judge of first instance does not determine the requirement of the landlord for his own occupation or the occupation of his son. Nor does the appellate judge, before whom the point is not pursued. The fourth fact just set out Mr. Ghose seizes. Having done so, he argues that the landlord's action then boils down only to requirement for building and rebuilding. Once that is that, Mr. Ghose continues, the test of comparative public benefit or disadvantage by extending or diminishing accommodation has got to be applied. And if that is applied, Mr. Ghose concludes, it is for me to harmonies the rights of the landlord with the protection the tenant needs, no less with the purposes of the 1950 Act, as Chatterjee, J. does in (1) Jiwanlal and Co, and others v. Manot and Co., Ltd., 64 C. W. N. 932. 3. The key-note of the decision just mentioned is that a contractual tenancy in England is not determined by frustration: so akin to section 108 (e) of the Transfer of Property Act, 4 of 1882. In the case in hand, frustration is visible too. 3. The key-note of the decision just mentioned is that a contractual tenancy in England is not determined by frustration: so akin to section 108 (e) of the Transfer of Property Act, 4 of 1882. In the case in hand, frustration is visible too. Appearances are very much in favour of the subject of the appellant's tenancy (no more than a tiled room and a kitchen) having been completely destroyed. But here the landlord does not say that that has determined the tenancy. The landlord says that the notice to quit has determined the tenancy-a fact which is conspicuous by its absence in the two English cases Chatterjee, J. cites: (2) Simper v. Coombs, [1948] 1 All E,r. 306 ; then (3) Denman v. Brise, [1949] 1 K. B. 22. But India, to continue the analysis of chatterjee, J. 's judgment, makes no distinction between a statutory tenancy and a contractual tenancy in this respect, as England does. So the English principle of frustration not determining a contractual tenancy will apply to a statutory tenancy in India. If that is so, the notice to quit determining the contractual tenancy has been an idle notice, impotent to determine the statutory tenancy. 4. But does not our law provide for recovery of possession against a statutory tenant also, other things being there? Section 12 of the 1950 Act opens with the provision that no decree for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant including a tenant whose lease has expired. The tenant whose lease has expired is surely a statutory tenant. This general prohibition is relaxed by a proviso that follows and the pith of which, in so far as it is material here, is that recovery of possession may be decreed (against a contractual tenant and a statutory tenant too) if the premises are reasonably required by the landlord for the purposes of building and rebuilding. The premises in controversy here are required so, as are the concurrent findings of the courts below. So what else can there be to stand between the landlord and the relief of eviction he prays the court for? The explanation to clause (h) ? The premises in controversy here are required so, as are the concurrent findings of the courts below. So what else can there be to stand between the landlord and the relief of eviction he prays the court for? The explanation to clause (h) ? All that this explanation explains is that in assessing the yardstick of reasonableness, the court shall have regard to the comparative public benefit or disadvantage by increasing or decreasing the accommodation to go round. The words "shall have regard" cannot be stretched to the breaking point to mean: no passing such a test, no reasonableness. "shall have regard" only means that the court shall take the test embodied in the explanation in consideration, as held by Das Gupta, J. (as his Lordship then was), Guha, J. agreeing, in (4) Sharma Electric Engineering Works and others v. Radha Devi and another, A. I. R. 1957 Cal. 227, a Letters Patent Appeal upholding the (5) decision of P. N. Mookerjee, J. re-ported in A. I. R. 1956 Calcutta 45. The courts below have taken this test into consideration very much. So it is hard to find an error of law which only gives me jurisdiction to upset the decision appealed against. With great respect to Chatterjee, J., the English principle, if that, of frustration not determining a contractual tenancy cannot show its head here. Governing myself by what Lord Sinha observes in (6) Mt. Ramanandi Kuer v. Kalawati Kuer, 32 C. W. N. 402: 55 I. A. 18, and also by what Sanderson, C. J. observes in (7) Raghumull Khandenwall v. Official Assignee, 28 C. W. N. 34, I say: here is a positive enactment of our State legislature. The proper course for me is to examine the language of this statute and to ascertain its proper meaning uninfluenced by any consideration derived from the English law. I have done no more. The position that emerges as the result of such examination is: the positive enactment of 1950 says to the court: Do not pass a decree for recovery of possession against a contractual tenant and a statutory tenant too, no matter what another positive enactment, the Transfer of Property Act, says. But you may pass such a decree if a certain condition is satisfied. The condition here is reasonable requirement by the landlord for building and rebuilding. That is satisfied. But you may pass such a decree if a certain condition is satisfied. The condition here is reasonable requirement by the landlord for building and rebuilding. That is satisfied. So, a decree for eviction there shall be. 5. With great respect again and with greater diffidence, I see, in Chatterjee, J's decision, a decision given per incuriam. It cannot, therefore, bind me. 6. This legal aspect apart, I see no end of complexities if I do what Mr. Ghose asks me to. Say, I keep the appellant's tenancy alive and ask him to vacate by a firm date so that the respondent can go on building and rebuilding his house Indeed, the respondent must start doing so within six months from the date of recovery of possession, as is the mandate of section 15 of the 1950 Act, But there is no time limit for the completion of the construction-indeed, there cannot be any-as pointed out by P. N. Mookerjee, J. in (5) Sharma Electric Engineering Works and others v, Radha Devi and another, A. I. K. 1956 Calcutta 45. What if the landlord takes years to complete the construction? With cement and various essential articles in short supply and subject to a rigorous control, that can be taken for granted. Will the court then pass a decree which the tenant can disobey only at his peril but which the landlord can sit tight upon for an indefinite length of time? I am afraid, no court can bring itself to do so without committing suicide. This is but one problem. Other problems, indeed, problems after problems, will crop up landing all concerned in a chaos. I shall not, therefore, do what Mr. Ghose asks me to. In the result, the only point urged in support of the appeal fails. And the appeal fails too. Be it dismissed with costs. 7. Leave to appeal under clause 15 of the Letters Patent has been asked for. It is allowed.